Freedom of Information exemptions

First published: May 2016

Reviewed: June 2019

© Crown copyright 2019

You may re-use this publication (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence v3.0. To view this licence visit nationalarchives.gov.uk/doc/open-government-licence; or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU; or email: psi@nationalarchives.gov.uk.

Any enquiries regarding this publication should be sent to us at governmentaudience@nationalarchives.gov.uk. Contents Introduction ........................................................................................................................................3 Summary of FOI Exemptions ...........................................................................................................4 Information exemptions (exceptions) in the Environmental Information Regulations ...............10 Introduction

The Freedom of Information Act 2000 (FOIA) repealed the vast majority of section 5 of the Public Records Act 1958 (PRA) which concerned access to public records. The text that applies to The National Archives (at s5(3)) now reads:

It shall be the duty of the Keeper to arrange that reasonable facilities are available to the public for inspecting and obtaining copies of public records in the Public Record Office which fall to be disclosed in accordance with the Freedom of Information Act 2000

Therefore, access to information in public records is provided under the FOIA although physical access to the records themselves continues to fall under the PRA.

Under the FOIA there is a presumption of openness, irrespective of the date of the record, unless an exemption applies.

There are two categories of exemption: absolute exemptions and qualified exemptions. An absolute exemption means there is no obligation under the FOIA to release the requested information (although there may be other reasons outside the act to do so). A qualified exemption means that the public authority has to assess the balance of the public interest for and against disclosure. The arguments against need to outweigh those in favour to justify non-disclosure. All exemptions in the Environmental Information Regulations are qualified and are called exceptions.

Exemptions can be either class- or prejudice-based. A class-based exemption means that if the information is of a type described in the exemption, then it is covered by that exemption. All absolute exemptions, and some qualified exemptions, are class-based. This means that in order to use the exemption the authority does not have to demonstrate that any particular harm would be caused by disclosure, however, in the case of qualified exemptions, authorities still need to consider the balance of public interest before deciding whether or not to disclose the information.

Prejudice-based exemptions are where the authority has to show that the prejudice or harm that is specified in the exemption either would, or would be likely to, occur. If an exemption is prejudice-based then the authority still must carry out the public interest test. Some FOI exemptions automatically cease to apply after 20 years, or some other pre-defined period. In the case of exemptions without a pre-defined cut-off date (indefinite exemptions), the information will remain exempt for as long as the criteria for the use of the exemption continues to be applicable.

The need to apply an exemption, or to apply it in the public interest, will generally diminish as time passes so that such records can be released eventually. The exemption for personal information (s40) ceases to apply when the individual concerned is no longer alive.

Summary of FOI Exemptions

The table below shows the exemptions to the rights to information, noting their duration and also whether the public interest test applies.

The designation ‘\* Secretary’ indicates that the Secretary of State must be consulted about a proposed refusal to disclose in the public interest information in a record in The National Archives or in a record retained under PRA s3(4).

The designation ‘20 \*\*’ indicates that the exemption duration has reduced to 20 from 30 years as a result of the Constitutional Reform and Governance Act 2010 section 46. This is an incremental transition from 2013 as per the Freedom of Information (Definition of Historical Records) (Transitional and Saving Provisions) Order 2012.

| Section | Exemption | Absolute or public interest test? | Class or prejudice test? | Duration | |---------|-----------|----------------------------------|--------------------------|----------| | 21 | Information already accessible (through another act or included in Publication Scheme) | Absolute | Class | Disapplied for records over 20 \*\* years old in The National Archives | | Section | Exemption | Absolute or public interest test? | Class or prejudice test? | Duration | |---------|---------------------------------------------------------------------------|-----------------------------------|--------------------------|----------| | 22 | Information intended for future publication (whether the date is determined or not) | Public interest | 'reasonableness' test | Disapplied for records over 20 \*\* years old in The National Archives | | 23 | Information supplied by, or relating to, bodies dealing with security matters (named) | Absolute unless in an historical record in The National Archives | Class | Indefinite * Secretary | | 24 | National security | Public interest | Prejudice test (using different wording: 'for the purpose of safeguarding national security' implies a test) | Indefinite * Secretary | | 26 | Defence | Public interest | Prejudice test | Indefinite * Secretary | | 27(1) | International relations – prejudice | Public interest | Prejudice test | Indefinite * Secretary | | 27(2) | International relations – information provided in confidence by other states or international organisations or courts | Public interest | Class | Indefinite * Secretary | | 28 | Relations within the UK (between the UK government, the Scottish Administration, the National Assembly for Wales and the Executive Committee) | Public interest | Prejudice test | 30 years * Secretary | | Section | Exemption | Absolute or public interest test? | Class or prejudice test? | Duration | |---------|---------------------------------------------------------------------------|-----------------------------------|--------------------------|----------| | | of the Northern Ireland Assembly) | | | | | 29 | The economy | Public interest | Prejudice test | Indefinite * Secretary | | 30(1) | Criminal investigations and proceedings conducted by the authority | Public interest | Class | Indefinite * Secretary | | 30(2) | Relating to civil or criminal investigations and proceedings which use confidential sources | Public interest | Class | Indefinite * Secretary | | 31 | Law enforcement | Public interest | Prejudice test | 100 years * Secretary | | 32 | Court records etc. | Absolute | Class | 20 \*\* years | | 33 | Audit functions | Public interest | Prejudice test | 20 \*\* years * Secretary | | 34 | Parliamentary privilege | Absolute | Prejudice test (using different wording: ‘for the purposes of avoiding an infringement of the privileges of) | Indefinite | | Section | Exemption | Absolute or public interest test? | Class or prejudice test? | Duration | |---------|---------------------------------------------------------------------------|-----------------------------------|--------------------------|----------| | | | either House’ implies a test) | | | | 35(1)(a)| Formulation of government policy | Public interest | Class | 20 \*\* years | | | | | * Secretary | | | 35(1)(b)| Ministerial communications | Public interest | Class | 20 \*\* years | | | | | * Secretary | | | 35(1)(c)| Law Officers’ advice | Public interest | Class | 20 \*\* years | | | | | * Secretary | | | 35(1)(d)| Operation of Ministerial Private Office | Public interest | Class | 20 \*\* years | | | | | * Secretary | | | 36 | Prejudice to effective conduct of public affairs | Public interest | Prejudice test | 20 \*\* years | | | | | This remains at 30 years for Northern Ireland material | | | | | | * Secretary | | | 37(1)(a), (aa), (ab) | Communications with Royal Family and Household (Sovereign and person who is, or becomes, heir and second heir) | Absolute | Class | CRAG Act has changed s37(1)(a) by splitting it into several parts | | | | | | 20 years or five years after death of person concerned, whichever is later | | 37(1)(ac)| Communications with other members of the Royal Family not on behalf of those covered by (a)-(ab) | Public interest | Class | 20 years or five years after death of person concerned, whichever is later | | | | | | * Secretary | | Section | Exemption | Absolute or public interest test? | Class or prejudice test? | Duration | |---------|---------------------------------------------------------------------------|-----------------------------------|--------------------------|--------------------------------------------------------------------------| | 37(1)(ad) | Communications with the Royal Household not on behalf of those covered by (a)-(ab) | Public interest | Class | 20 years or five years after death of Sovereign contemporary with the information, whichever is later * Secretary | | 37(1)(b) | Honours | Public interest | Class | 60 years * Secretary | | 38 | Health and safety | Public interest | Prejudice test | Indefinite * Secretary | | 39 | Environmental information (obliged to make available under the Aarhus convention, or would be obliged but for an exemption in Regulations under s74) | Public interest | Class | Indefinite * Secretary | | 40(1) | Personal information where the applicant is data subject | Absolute | Class | Lifetime of data subject | | 40(2) | Personal information where the applicant is a third party | Absolute in relation to categories (a)-(d) data, qualified in relation to category (e) data | Prejudice test (using different and complex wording): disclosure should not cause breach of the principles set out in— Article 5(1) of the GDPR, and section | Lifetime of data subject | | Section | Exemption | Absolute or public interest test? | Class or prejudice test? | Duration | |---------|-----------------------------------------------|-----------------------------------|--------------------------|-------------------------------| | | | 34(1) of the Data Protection Act 2018 | | | | 41 | Information provided in confidence | Absolute | Variation of prejudice test (breach of confidence must be ‘actionable’) | Indefinite | | 42 | Legal professional privilege | Public interest | Variation of prejudice test (claim could be maintained in legal proceedings) | 20 \*\* years * Secretary | | 43(1) | Trade secret | Public interest | Class | 30 years * Secretary | | 43(2) | Commercial interests | Public interest | Prejudice test | 30 years * Secretary | | 44 | Prohibitions on disclosure: | Absolute | Class | Indefinite | | | (a) acts | | | | | | (b) community obligations | | | | | | (c) contempt of court | | | |

## Information exemptions (exceptions) in the Environmental Information Regulations

| Regulation | Exception | Absolute or public interest test? | Duration | Note | |------------|---------------------------------------------------------------------------|-----------------------------------|----------------|----------------------------------------------------------------------| | 12(3) and 13 | Personal information | As FOIA s40 | Lifetime of data subject | | | 12(5)(a) | International relations, defence, national security or public safety | Public interest test | Indefinite | | | 12(5)(b) | Course of justice, ability of a person to receive a fair trial or ability of a public authority to conduct a criminal or disciplinary inquiry | Public interest test | Indefinite | | | 12(5)(c) | Intellectual property rights | Public interest test | Indefinite | | | 12(5)(d) | Confidentiality of proceedings of that or any other authority where such confidentiality is provided by law | Public interest test | Indefinite | Cannot be used if information relates to emissions | | 12(5)(e) | Confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest | Public interest test | Indefinite | Cannot be used if information relates to emissions | | Regulation | Exception | Absolute or public interest test? | Duration | Note | |------------|-----------|----------------------------------|----------|------| | 12(5)(f) | Interests of person who provided information where that person: (i) was not under, and could not have been put under, a legal obligation to supply it to that or any other authority (ii) circumstances of supply are not such that any authority is entitled, apart from EIR, to disclose it, and (ii) has not consented to its disclosure | Public interest test | Indefinite | Cannot be used if information relates to emissions | | 12(5)(g) | The protection of the environment to which the information relates | Public interest test | Indefinite | Cannot be used if information relates to emissions |